1-1 By: Nelson S.B. No. 791
1-2 (In the Senate - Filed February 20, 2001; February 21, 2001,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 9, 2001, reported favorably by the following vote:
1-5 Yeas 7, Nays 0; April 9, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the imposition of administrative, civil, and criminal
1-9 penalties and the authorization of emergency license suspension for
1-10 certain licensing programs regulated by the Texas Department of
1-11 Health.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter I, Chapter 203, Occupations Code, is
1-14 amended by adding Section 203.405 to read as follows:
1-15 Sec. 203.405. EMERGENCY SUSPENSION. (a) The board or a
1-16 three-member committee of board members designated by the board
1-17 shall temporarily suspend the letter of documentation of a
1-18 documented midwife if the board or committee determines from the
1-19 evidence or information presented to it that continued practice by
1-20 the documented midwife would constitute a continuing and imminent
1-21 threat to the public welfare.
1-22 (b) A letter of documentation may be suspended under this
1-23 section without notice or hearing on the complaint if:
1-24 (1) action is taken to initiate proceedings for a
1-25 hearing before the State Office of Administrative Hearings
1-26 simultaneously with the temporary suspension; and
1-27 (2) a hearing is held as soon as practicable under
1-28 this chapter and Chapter 2001, Government Code.
1-29 (c) The State Office of Administrative Hearings shall hold a
1-30 preliminary hearing not later than the 14th day after the date of
1-31 the temporary suspension to determine if there is probable cause to
1-32 believe that a continuing and imminent threat to the public welfare
1-33 still exists. A final hearing on the matter shall be held not
1-34 later than the 61st day after the date of the temporary suspension.
1-35 SECTION 2. Subchapter F, Chapter 352, Occupations Code, is
1-36 amended by adding Section 352.254 to read as follows:
1-37 Sec. 352.254. EMERGENCY SUSPENSION. (a) The board or a
1-38 three-member committee of board members designated by the board
1-39 shall temporarily suspend the certificate of registration of a
1-40 certificate holder if the board or committee determines from the
1-41 evidence or information presented to it that continued practice by
1-42 the certificate holder would constitute a continuing and imminent
1-43 threat to the public welfare.
1-44 (b) A certificate of registration may be suspended under
1-45 this section without notice or hearing on the complaint if:
1-46 (1) action is taken to initiate proceedings for a
1-47 hearing before the State Office of Administrative Hearings
1-48 simultaneously with the temporary suspension; and
1-49 (2) a hearing is held as soon as practicable under
1-50 this chapter and Chapter 2001, Government Code.
1-51 (c) The State Office of Administrative Hearings shall hold a
1-52 preliminary hearing not later than the 14th day after the date of
1-53 the temporary suspension to determine if there is probable cause to
1-54 believe that a continuing and imminent threat to the public welfare
1-55 still exists. A final hearing on the matter shall be held not
1-56 later than the 61st day after the date of the temporary suspension.
1-57 SECTION 3. Subchapter E, Chapter 353, Occupations Code, is
1-58 amended by adding Section 353.2025 to read as follows:
1-59 Sec. 353.2025. EMERGENCY SUSPENSION. (a) The board or a
1-60 three-member committee of board members designated by the board
1-61 shall temporarily suspend the permit of a permit holder if the
1-62 board or committee determines from the evidence or information
1-63 presented to it that continued practice by the permit holder would
1-64 constitute a continuing and imminent threat to the public welfare.
2-1 (b) A permit may be suspended under this section without
2-2 notice or hearing on the complaint if:
2-3 (1) action is taken to initiate proceedings for a
2-4 hearing before the State Office of Administrative Hearings
2-5 simultaneously with the temporary suspension; and
2-6 (2) a hearing is held as soon as practicable under
2-7 this chapter and Chapter 2001, Government Code.
2-8 (c) The State Office of Administrative Hearings shall hold a
2-9 preliminary hearing not later than the 14th day after the date of
2-10 the temporary suspension to determine if there is probable cause to
2-11 believe that a continuing and imminent threat to the public welfare
2-12 still exists. A final hearing on the matter shall be held not
2-13 later than the 61st day after the date of the temporary suspension.
2-14 SECTION 4. Subchapter J, Chapter 401, Occupations Code, is
2-15 amended by adding Section 401.460 to read as follows:
2-16 Sec. 401.460. EMERGENCY SUSPENSION. (a) The board or a
2-17 three-member committee of board members designated by the board
2-18 shall temporarily suspend the license of a license holder if the
2-19 board or committee determines from the evidence or information
2-20 presented to it that continued practice by the license holder would
2-21 constitute a continuing and imminent threat to the public welfare.
2-22 (b) A license may be suspended under this section without
2-23 notice or hearing on the complaint if:
2-24 (1) action is taken to initiate proceedings for a
2-25 hearing before the State Office of Administrative Hearings
2-26 simultaneously with the temporary suspension; and
2-27 (2) a hearing is held as soon as practicable under
2-28 this chapter and Chapter 2001, Government Code.
2-29 (c) The State Office of Administrative Hearings shall hold a
2-30 preliminary hearing not later than the 14th day after the date of
2-31 the temporary suspension to determine if there is probable cause to
2-32 believe that a continuing and imminent threat to the public welfare
2-33 still exists. A final hearing on the matter shall be held not
2-34 later than the 61st day after the date of the temporary suspension.
2-35 SECTION 5. Chapter 401, Occupations Code, is amended by
2-36 adding Subchapter L to read as follows:
2-37 SUBCHAPTER L. ADMINISTRATIVE PENALTY
2-38 Sec. 401.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The
2-39 board may impose an administrative penalty on a person licensed
2-40 under this chapter who violates this chapter or a rule or order
2-41 adopted under this chapter.
2-42 Sec. 401.552. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
2-43 amount of the administrative penalty may not be less than $50 or
2-44 more than $500 for each violation. Each day a violation continues
2-45 or occurs is a separate violation for the purpose of imposing a
2-46 penalty.
2-47 (b) The amount shall be based on:
2-48 (1) the seriousness of the violation, including the
2-49 nature, circumstances, extent, and gravity of the violation;
2-50 (2) the economic harm caused by the violation;
2-51 (3) the history of previous violations;
2-52 (4) the amount necessary to deter a future violation;
2-53 (5) efforts to correct the violation; and
2-54 (6) any other matter that justice may require.
2-55 Sec. 401.553. REPORT AND NOTICE OF VIOLATION AND PENALTY.
2-56 (a) If the commissioner of public health determines that a
2-57 violation occurred, the commissioner may issue to the board a
2-58 report stating:
2-59 (1) the facts on which the determination is based; and
2-60 (2) the commissioner's recommendation on the
2-61 imposition of an administrative penalty, including a recommendation
2-62 on the amount of the penalty.
2-63 (b) Within 14 days after the date the report is issued, the
2-64 commissioner of public health shall give written notice of the
2-65 report to the person. The notice must:
2-66 (1) include a brief summary of the alleged violation;
2-67 (2) state the amount of the recommended administrative
2-68 penalty; and
2-69 (3) inform the person of the person's right to a
3-1 hearing on the occurrence of the violation, the amount of the
3-2 penalty, or both.
3-3 Sec. 401.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
3-4 Within 10 days after the date the person receives the notice, the
3-5 person in writing may:
3-6 (1) accept the determination and recommended
3-7 administrative penalty of the commissioner of public health; or
3-8 (2) make a request for a hearing on the occurrence of
3-9 the violation, the amount of the penalty, or both.
3-10 (b) If the person accepts the determination and recommended
3-11 penalty of the commissioner of public health, the board by order
3-12 shall approve the determination and impose the recommended penalty.
3-13 Sec. 401.555. HEARING. (a) If the person requests a
3-14 hearing or fails to respond in a timely manner to the notice, the
3-15 commissioner of public health shall set a hearing and give written
3-16 notice of the hearing to the person.
3-17 (b) An administrative law judge of the State Office of
3-18 Administrative Hearings shall hold the hearing.
3-19 (c) The administrative law judge shall make findings of fact
3-20 and conclusions of law and promptly issue to the board a proposal
3-21 for a decision about the occurrence of the violation and the amount
3-22 of a proposed administrative penalty.
3-23 Sec. 401.556. DECISION BY BOARD. (a) Based on the findings
3-24 of fact, conclusions of law, and proposal for decision, the board
3-25 by order may determine that:
3-26 (1) a violation occurred and impose an administrative
3-27 penalty; or
3-28 (2) a violation did not occur.
3-29 (b) The notice of the board's order given to the person must
3-30 include a statement of the right of the person to judicial review
3-31 of the order.
3-32 Sec. 401.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
3-33 (a) Within 30 days after the date the board's order becomes final,
3-34 the person shall:
3-35 (1) pay the administrative penalty; or
3-36 (2) file a petition for judicial review contesting the
3-37 occurrence of the violation, the amount of the penalty, or both.
3-38 (b) Within the 30-day period prescribed by Subsection (a), a
3-39 person who files a petition for judicial review may:
3-40 (1) stay enforcement of the penalty by:
3-41 (A) paying the penalty to the court for
3-42 placement in an escrow account; or
3-43 (B) giving the court a supersedeas bond approved
3-44 by the court that:
3-45 (i) is for the amount of the penalty; and
3-46 (ii) is effective until all judicial
3-47 review of the board's order is final; or
3-48 (2) request the court to stay enforcement of the
3-49 penalty by:
3-50 (A) filing with the court a sworn affidavit of
3-51 the person stating that the person is financially unable to pay the
3-52 penalty and is financially unable to give the supersedeas bond; and
3-53 (B) giving a copy of the affidavit to the
3-54 commissioner of public health by certified mail.
3-55 (c) If the commissioner of public health receives a copy of
3-56 an affidavit under Subsection (b)(2), the commissioner may file
3-57 with the court, within five days after the date the copy is
3-58 received, a contest to the affidavit.
3-59 (d) The court shall hold a hearing on the facts alleged in
3-60 the affidavit as soon as practicable and shall stay the enforcement
3-61 of the penalty on finding that the alleged facts are true. The
3-62 person who files an affidavit has the burden of proving that the
3-63 person is financially unable to pay the penalty and to give a
3-64 supersedeas bond.
3-65 Sec. 401.558. COLLECTION OF PENALTY. (a) If the person
3-66 does not pay the administrative penalty and the enforcement of the
3-67 penalty is not stayed, the penalty may be collected.
3-68 (b) The attorney general may sue to collect the penalty.
3-69 Sec. 401.559. DETERMINATION BY COURT. (a) If the court
4-1 sustains the determination that a violation occurred, the court may
4-2 uphold or reduce the amount of the administrative penalty and order
4-3 the person to pay the full or reduced amount of the penalty.
4-4 (b) If the court does not sustain the finding that a
4-5 violation occurred, the court shall order that a penalty is not
4-6 owed.
4-7 Sec. 401.560. REMITTANCE OF PENALTY AND INTEREST. (a) If
4-8 the person paid the administrative penalty and if the amount of the
4-9 penalty is reduced or the penalty is not upheld by the court, the
4-10 court shall order, when the court's judgment becomes final, that
4-11 the appropriate amount plus accrued interest be remitted to the
4-12 person.
4-13 (b) The interest accrues at the rate charged on loans to
4-14 depository institutions by the New York Federal Reserve Bank.
4-15 (c) The interest shall be paid for the period beginning on
4-16 the date the penalty is paid and ending on the date the penalty is
4-17 remitted.
4-18 (d) If the person gave a supersedeas bond and the penalty is
4-19 not upheld by the court, the court shall order, when the court's
4-20 judgment becomes final, the release of the bond.
4-21 (e) If the person gave a supersedeas bond and the amount of
4-22 the penalty is reduced, the court shall order the release of the
4-23 bond after the person pays the reduced amount.
4-24 Sec. 401.561. ADMINISTRATIVE PROCEDURE. A proceeding under
4-25 this subchapter is a contested case under Chapter 2001, Government
4-26 Code.
4-27 SECTION 6. Subchapter K, Chapter 402, Occupations Code, is
4-28 amended by adding Section 402.504 to read as follows:
4-29 Sec. 402.504. EMERGENCY SUSPENSION. (a) The board or a
4-30 three-member committee of board members designated by the board
4-31 shall temporarily suspend the license or permit of a license or
4-32 permit holder if the board or committee determines from the
4-33 evidence or information presented to it that continued practice by
4-34 the license or permit holder would constitute a continuing and
4-35 imminent threat to the public welfare.
4-36 (b) A license or permit may be suspended under this section
4-37 without notice or hearing on the complaint if:
4-38 (1) action is taken to initiate proceedings for a
4-39 hearing before the State Office of Administrative Hearings
4-40 simultaneously with the temporary suspension; and
4-41 (2) a hearing is held as soon as practicable under
4-42 this chapter and Chapter 2001, Government Code.
4-43 (c) The State Office of Administrative Hearings shall hold a
4-44 preliminary hearing not later than the 14th day after the date of
4-45 the temporary suspension to determine if there is probable cause to
4-46 believe that a continuing and imminent threat to the public welfare
4-47 still exists. A final hearing on the matter shall be held not
4-48 later than the 61st day after the date of the temporary suspension.
4-49 SECTION 7. Subchapter L, Chapter 402, Occupations Code, is
4-50 amended by adding Section 402.553 to read as follows:
4-51 Sec. 402.553. CIVIL PENALTY. (a) A person who violates
4-52 this chapter or a rule or order adopted by the board under this
4-53 chapter is liable for a civil penalty not to exceed $1,000 a day.
4-54 (b) At the request of the board or department, the attorney
4-55 general shall bring an action to recover a civil penalty authorized
4-56 under this section.
4-57 SECTION 8. Subchapter F, Chapter 451, Occupations Code, is
4-58 amended by adding Section 451.255 to read as follows:
4-59 Sec. 451.255. EMERGENCY SUSPENSION. (a) The board or a
4-60 three-member committee of board members designated by the board
4-61 shall temporarily suspend the license of a license holder if the
4-62 board or committee determines from the evidence or information
4-63 presented to it that continued practice by the license holder would
4-64 constitute a continuing and imminent threat to the public welfare.
4-65 (b) A license may be suspended under this section without
4-66 notice or hearing on the complaint if:
4-67 (1) action is taken to initiate proceedings for a
4-68 hearing before the State Office of Administrative Hearings
4-69 simultaneously with the temporary suspension; and
5-1 (2) a hearing is held as soon as practicable under
5-2 this chapter and Chapter 2001, Government Code.
5-3 (c) The State Office of Administrative Hearings shall hold a
5-4 preliminary hearing not later than the 14th day after the date of
5-5 the temporary suspension to determine if there is probable cause to
5-6 believe that a continuing and imminent threat to the public welfare
5-7 still exists. A final hearing on the matter shall be held not
5-8 later than the 61st day after the date of the temporary suspension.
5-9 SECTION 9. Subchapter F, Chapter 455, Occupations Code, is
5-10 amended by adding Section 455.254 to read as follows:
5-11 Sec. 455.254. EMERGENCY SUSPENSION. (a) The board or a
5-12 three-member committee of board members designated by the board
5-13 shall temporarily suspend the certificate of registration of a
5-14 certificate holder if the board or committee determines from the
5-15 evidence or information presented to it that continued practice by
5-16 the certificate holder would constitute a continuing and imminent
5-17 threat to the public welfare.
5-18 (b) A certificate of registration may be suspended under
5-19 this section without notice or hearing on the complaint if:
5-20 (1) action is taken to initiate proceedings for a
5-21 hearing before the State Office of Administrative Hearings
5-22 simultaneously with the temporary suspension; and
5-23 (2) a hearing is held as soon as practicable under
5-24 this chapter and Chapter 2001, Government Code.
5-25 (c) The State Office of Administrative Hearings shall hold a
5-26 preliminary hearing not later than the 14th day after the date of
5-27 the temporary suspension to determine if there is probable cause to
5-28 believe that a continuing and imminent threat to the public welfare
5-29 still exists. A final hearing on the matter shall be held not
5-30 later than the 61st day after the date of the temporary suspension.
5-31 SECTION 10. Subchapter H, Chapter 502, Occupations Code, is
5-32 amended by adding Section 502.356 to read as follows:
5-33 Sec. 502.356. EMERGENCY SUSPENSION. (a) The board or a
5-34 three-member committee of board members designated by the board
5-35 shall temporarily suspend the license of a license holder if the
5-36 board or committee determines from the evidence or information
5-37 presented to it that continued practice by the license holder would
5-38 constitute a continuing and imminent threat to the public welfare.
5-39 (b) A license may be suspended under this section without
5-40 notice or hearing on the complaint if:
5-41 (1) action is taken to initiate proceedings for a
5-42 hearing before the State Office of Administrative Hearings
5-43 simultaneously with the temporary suspension; and
5-44 (2) a hearing is held as soon as practicable under
5-45 this chapter and Chapter 2001, Government Code.
5-46 (c) The State Office of Administrative Hearings shall hold a
5-47 preliminary hearing not later than the 14th day after the date of
5-48 the temporary suspension to determine if there is probable cause to
5-49 believe that a continuing and imminent threat to the public welfare
5-50 still exists. A final hearing on the matter shall be held not
5-51 later than the 61st day after the date of the temporary suspension.
5-52 SECTION 11. Chapter 503, Occupations Code, is amended by
5-53 adding Subchapter K to read as follows:
5-54 SUBCHAPTER K. ADMINISTRATIVE PENALTY
5-55 Sec. 503.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
5-56 board may impose an administrative penalty on a person licensed
5-57 under this chapter who violates this chapter or a rule or order
5-58 adopted under this chapter.
5-59 Sec. 503.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
5-60 amount of the administrative penalty may not be less than $50 or
5-61 more than $500 for each violation. Each day a violation continues
5-62 or occurs is a separate violation for the purpose of imposing a
5-63 penalty.
5-64 (b) The amount shall be based on:
5-65 (1) the seriousness of the violation, including the
5-66 nature, circumstances, extent, and gravity of the violation;
5-67 (2) the economic harm caused by the violation;
5-68 (3) the history of previous violations;
5-69 (4) the amount necessary to deter a future violation;
6-1 (5) efforts to correct the violation; and
6-2 (6) any other matter that justice may require.
6-3 Sec. 503.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
6-4 (a) If the commissioner of public health determines that a
6-5 violation occurred, the commissioner may issue to the board a
6-6 report stating:
6-7 (1) the facts on which the determination is based; and
6-8 (2) the commissioner's recommendation on the
6-9 imposition of an administrative penalty, including a recommendation
6-10 on the amount of the penalty.
6-11 (b) Within 14 days after the date the report is issued, the
6-12 commissioner of public health shall give written notice of the
6-13 report to the person. The notice must:
6-14 (1) include a brief summary of the alleged violation;
6-15 (2) state the amount of the recommended administrative
6-16 penalty; and
6-17 (3) inform the person of the person's right to a
6-18 hearing on the occurrence of the violation, the amount of the
6-19 penalty, or both.
6-20 Sec. 503.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
6-21 Within 10 days after the date the person receives the notice, the
6-22 person in writing may:
6-23 (1) accept the determination and recommended
6-24 administrative penalty of the commissioner of public health; or
6-25 (2) make a request for a hearing on the occurrence of
6-26 the violation, the amount of the penalty, or both.
6-27 (b) If the person accepts the determination and recommended
6-28 penalty of the commissioner of public health, the board by order
6-29 shall approve the determination and impose the recommended penalty.
6-30 Sec. 503.505. HEARING. (a) If the person requests a
6-31 hearing or fails to respond in a timely manner to the notice, the
6-32 commissioner of public health shall set a hearing and give written
6-33 notice of the hearing to the person.
6-34 (b) An administrative law judge of the State Office of
6-35 Administrative Hearings shall hold the hearing.
6-36 (c) The administrative law judge shall make findings of fact
6-37 and conclusions of law and promptly issue to the board a proposal
6-38 for a decision about the occurrence of the violation and the amount
6-39 of a proposed administrative penalty.
6-40 Sec. 503.506. DECISION BY BOARD. (a) Based on the findings
6-41 of fact, conclusions of law, and proposal for decision, the board
6-42 by order may determine that:
6-43 (1) a violation occurred and impose an administrative
6-44 penalty; or
6-45 (2) a violation did not occur.
6-46 (b) The notice of the board's order given to the person must
6-47 include a statement of the right of the person to judicial review
6-48 of the order.
6-49 Sec. 503.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
6-50 (a) Within 30 days after the date the board's order becomes final,
6-51 the person shall:
6-52 (1) pay the administrative penalty; or
6-53 (2) file a petition for judicial review contesting the
6-54 occurrence of the violation, the amount of the penalty, or both.
6-55 (b) Within the 30-day period prescribed by Subsection (a), a
6-56 person who files a petition for judicial review may:
6-57 (1) stay enforcement of the penalty by:
6-58 (A) paying the penalty to the court for
6-59 placement in an escrow account; or
6-60 (B) giving the court a supersedeas bond approved
6-61 by the court that:
6-62 (i) is for the amount of the penalty; and
6-63 (ii) is effective until all judicial
6-64 review of the board's order is final; or
6-65 (2) request the court to stay enforcement of the
6-66 penalty by:
6-67 (A) filing with the court a sworn affidavit of
6-68 the person stating that the person is financially unable to pay the
6-69 penalty and is financially unable to give the supersedeas bond; and
7-1 (B) giving a copy of the affidavit to the
7-2 commissioner of public health by certified mail.
7-3 (c) If the commissioner of public health receives a copy of
7-4 an affidavit under Subsection (b)(2), the commissioner may file
7-5 with the court, within five days after the date the copy is
7-6 received, a contest to the affidavit.
7-7 (d) The court shall hold a hearing on the facts alleged in
7-8 the affidavit as soon as practicable and shall stay the enforcement
7-9 of the penalty on finding that the alleged facts are true. The
7-10 person who files an affidavit has the burden of proving that the
7-11 person is financially unable to pay the penalty and to give a
7-12 supersedeas bond.
7-13 Sec. 503.508. COLLECTION OF PENALTY. (a) If the person
7-14 does not pay the administrative penalty and the enforcement of the
7-15 penalty is not stayed, the penalty may be collected.
7-16 (b) The attorney general may sue to collect the penalty.
7-17 Sec. 503.509. DETERMINATION BY COURT. (a) If the court
7-18 sustains the determination that a violation occurred, the court may
7-19 uphold or reduce the amount of the administrative penalty and order
7-20 the person to pay the full or reduced amount of the penalty.
7-21 (b) If the court does not sustain the finding that a
7-22 violation occurred, the court shall order that a penalty is not
7-23 owed.
7-24 Sec. 503.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
7-25 the person paid the administrative penalty and if the amount of the
7-26 penalty is reduced or the penalty is not upheld by the court, the
7-27 court shall order, when the court's judgment becomes final, that
7-28 the appropriate amount plus accrued interest be remitted to the
7-29 person.
7-30 (b) The interest accrues at the rate charged on loans to
7-31 depository institutions by the New York Federal Reserve Bank.
7-32 (c) The interest shall be paid for the period beginning on
7-33 the date the penalty is paid and ending on the date the penalty is
7-34 remitted.
7-35 (d) If the person gave a supersedeas bond and the penalty is
7-36 not upheld by the court, the court shall order, when the court's
7-37 judgment becomes final, the release of the bond.
7-38 (e) If the person gave a supersedeas bond and the amount of
7-39 the penalty is reduced, the court shall order the release of the
7-40 bond after the person pays the reduced amount.
7-41 Sec. 503.511. ADMINISTRATIVE PROCEDURE. A proceeding under
7-42 this subchapter is a contested case under Chapter 2001, Government
7-43 Code.
7-44 SECTION 12. Subchapter J, Chapter 505, Occupations Code, is
7-45 amended by adding Section 505.507 to read as follows:
7-46 Sec. 505.507. CRIMINAL PENALTY. (a) A person required to
7-47 hold a license under this chapter commits an offense if the person
7-48 knowingly acts as a social worker without holding a license issued
7-49 under this chapter.
7-50 (b) An offense under Subsection (a) is a Class B
7-51 misdemeanor.
7-52 SECTION 13. Subchapter G, Chapter 601, Occupations Code, is
7-53 amended by adding Section 601.306 to read as follows:
7-54 Sec. 601.306. EMERGENCY SUSPENSION. (a) The board or a
7-55 three-member committee of board members designated by the board
7-56 shall temporarily suspend the certificate of a certificate holder
7-57 if the board or committee determines from the evidence or
7-58 information presented to it that continued practice by the
7-59 certificate holder would constitute a continuing and imminent
7-60 threat to the public welfare.
7-61 (b) A certificate may be suspended under this section
7-62 without notice or hearing on the complaint if:
7-63 (1) action is taken to initiate proceedings for a
7-64 hearing before the State Office of Administrative Hearings
7-65 simultaneously with the temporary suspension; and
7-66 (2) a hearing is held as soon as practicable under
7-67 this chapter and Chapter 2001, Government Code.
7-68 (c) The State Office of Administrative Hearings shall hold a
7-69 preliminary hearing not later than the 14th day after the date of
8-1 the temporary suspension to determine if there is probable cause to
8-2 believe that a continuing and imminent threat to the public welfare
8-3 still exists. A final hearing on the matter shall be held not
8-4 later than the 61st day after the date of the temporary suspension.
8-5 SECTION 14. Subchapter F, Chapter 602, Occupations Code, is
8-6 amended by adding Section 602.254 to read as follows:
8-7 Sec. 602.254. EMERGENCY SUSPENSION. (a) The board or a
8-8 three-member committee of board members designated by the board
8-9 shall temporarily suspend the license of a license holder if the
8-10 board or committee determines from the evidence or information
8-11 presented to it that continued practice by the license holder would
8-12 constitute a continuing and imminent threat to the public welfare.
8-13 (b) A license may be suspended under this section without
8-14 notice or hearing on the complaint if:
8-15 (1) action is taken to initiate proceedings for a
8-16 hearing before the State Office of Administrative Hearings
8-17 simultaneously with the temporary suspension; and
8-18 (2) a hearing is held as soon as practicable under
8-19 this chapter and Chapter 2001, Government Code.
8-20 (c) The State Office of Administrative Hearings shall hold a
8-21 preliminary hearing not later than the 14th day after the date of
8-22 the temporary suspension to determine if there is probable cause to
8-23 believe that a continuing and imminent threat to the public welfare
8-24 still exists. A final hearing on the matter shall be held not
8-25 later than the 61st day after the date of the temporary suspension.
8-26 SECTION 15. Subchapter G, Chapter 602, Occupations Code, is
8-27 amended by adding Section 602.3015 to read as follows:
8-28 Sec. 602.3015. CIVIL PENALTY. (a) A person who violates
8-29 this chapter or a rule or order adopted by the board under this
8-30 chapter is liable for a civil penalty not to exceed $1,000 a day.
8-31 (b) At the request of the board or department, the attorney
8-32 general shall bring an action to recover a civil penalty authorized
8-33 under this section.
8-34 SECTION 16. Section 602.302, Occupations Code, is amended to
8-35 read as follows:
8-36 Sec. 602.302. OFFENSE. (a) A person commits an offense if
8-37 the person [knowingly]:
8-38 (1) practices medical physics without holding a
8-39 license under this chapter;
8-40 (2) practices a specialty of medical physics without
8-41 holding a license for the specialty;
8-42 (3) knowingly practices medical physics in violation
8-43 of this chapter; or
8-44 (4) knowingly [(2)] uses in any manner letters,
8-45 terminology, symbols, or signs to indicate or imply that the person
8-46 is qualified or licensed to practice medical physics in a manner
8-47 for which the person is not licensed under this chapter.
8-48 (b) An offense under this section is a Class A [B]
8-49 misdemeanor.
8-50 SECTION 17. Subchapter I, Chapter 603, Occupations Code, is
8-51 amended by adding Section 603.408 to read as follows:
8-52 Sec. 603.408. EMERGENCY SUSPENSION. (a) The board or a
8-53 three-member committee of board members designated by the board
8-54 shall temporarily suspend the license of a license holder if the
8-55 board or committee determines from the evidence or information
8-56 presented to it that continued practice by the license holder would
8-57 constitute a continuing and imminent threat to the public welfare.
8-58 (b) A license may be suspended under this section without
8-59 notice or hearing on the complaint if:
8-60 (1) action is taken to initiate proceedings for a
8-61 hearing before the State Office of Administrative Hearings
8-62 simultaneously with the temporary suspension; and
8-63 (2) a hearing is held as soon as practicable under
8-64 this chapter and Chapter 2001, Government Code.
8-65 (c) The State Office of Administrative Hearings shall hold a
8-66 preliminary hearing not later than the 14th day after the date of
8-67 the temporary suspension to determine if there is probable cause to
8-68 believe that a continuing and imminent threat to the public welfare
8-69 still exists. A final hearing on the matter shall be held not
9-1 later than the 61st day after the date of the temporary suspension.
9-2 SECTION 18. Subchapter J, Chapter 603, Occupations Code, is
9-3 amended by adding Section 603.4515 to read as follows:
9-4 Sec. 603.4515. CIVIL PENALTY. (a) A person who violates
9-5 this chapter or a rule or order adopted by the board under this
9-6 chapter is liable for a civil penalty not to exceed $1,000 a day.
9-7 (b) At the request of the board or department, the attorney
9-8 general shall bring an action to recover a civil penalty authorized
9-9 under this section.
9-10 SECTION 19. Chapter 603, Occupations Code, is amended by
9-11 adding Subchapter K to read as follows:
9-12 SUBCHAPTER K. ADMINISTRATIVE PENALTY
9-13 Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
9-14 board may impose an administrative penalty on a person licensed
9-15 under this chapter who violates this chapter or a rule or order
9-16 adopted under this chapter.
9-17 Sec. 603.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
9-18 amount of the administrative penalty may not be less than $50 or
9-19 more than $500 for each violation. Each day a violation continues
9-20 or occurs is a separate violation for the purpose of imposing a
9-21 penalty.
9-22 (b) The amount shall be based on:
9-23 (1) the seriousness of the violation, including the
9-24 nature, circumstances, extent, and gravity of the violation;
9-25 (2) the economic harm caused by the violation;
9-26 (3) the history of previous violations;
9-27 (4) the amount necessary to deter a future violation;
9-28 (5) efforts to correct the violation; and
9-29 (6) any other matter that justice may require.
9-30 Sec. 603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
9-31 (a) If the commissioner determines that a violation occurred, the
9-32 commissioner may issue to the board a report stating:
9-33 (1) the facts on which the determination is based; and
9-34 (2) the commissioner's recommendation on the
9-35 imposition of an administrative penalty, including a recommendation
9-36 on the amount of the penalty.
9-37 (b) Within 14 days after the date the report is issued, the
9-38 commissioner shall give written notice of the report to the person.
9-39 The notice must:
9-40 (1) include a brief summary of the alleged violation;
9-41 (2) state the amount of the recommended administrative
9-42 penalty; and
9-43 (3) inform the person of the person's right to a
9-44 hearing on the occurrence of the violation, the amount of the
9-45 penalty, or both.
9-46 Sec. 603.504. PENALTY TO BE PAID OR HEARING REQUESTED.
9-47 (a) Within 10 days after the date the person receives the notice,
9-48 the person in writing may:
9-49 (1) accept the determination and recommended
9-50 administrative penalty of the commissioner; or
9-51 (2) make a request for a hearing on the occurrence of
9-52 the violation, the amount of the penalty, or both.
9-53 (b) If the person accepts the determination and recommended
9-54 penalty of the commissioner, the board by order shall approve the
9-55 determination and impose the recommended penalty.
9-56 Sec. 603.505. HEARING. (a) If the person requests a
9-57 hearing or fails to respond in a timely manner to the notice, the
9-58 commissioner shall set a hearing and give written notice of the
9-59 hearing to the person.
9-60 (b) An administrative law judge of the State Office of
9-61 Administrative Hearings shall hold the hearing.
9-62 (c) The administrative law judge shall make findings of fact
9-63 and conclusions of law and promptly issue to the board a proposal
9-64 for a decision about the occurrence of the violation and the amount
9-65 of a proposed administrative penalty.
9-66 Sec. 603.506. DECISION BY BOARD. (a) Based on the findings
9-67 of fact, conclusions of law, and proposal for decision, the board
9-68 by order may determine that:
9-69 (1) a violation occurred and impose an administrative
10-1 penalty; or
10-2 (2) a violation did not occur.
10-3 (b) The notice of the board's order given to the person must
10-4 include a statement of the right of the person to judicial review
10-5 of the order.
10-6 Sec. 603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
10-7 (a) Within 30 days after the date the board's order becomes final,
10-8 the person shall:
10-9 (1) pay the administrative penalty; or
10-10 (2) file a petition for judicial review contesting the
10-11 occurrence of the violation, the amount of the penalty, or both.
10-12 (b) Within the 30-day period prescribed by Subsection (a), a
10-13 person who files a petition for judicial review may:
10-14 (1) stay enforcement of the penalty by:
10-15 (A) paying the penalty to the court for
10-16 placement in an escrow account; or
10-17 (B) giving the court a supersedeas bond approved
10-18 by the court that:
10-19 (i) is for the amount of the penalty; and
10-20 (ii) is effective until all judicial
10-21 review of the board's order is final; or
10-22 (2) request the court to stay enforcement of the
10-23 penalty by:
10-24 (A) filing with the court a sworn affidavit of
10-25 the person stating that the person is financially unable to pay the
10-26 penalty and is financially unable to give the supersedeas bond; and
10-27 (B) giving a copy of the affidavit to the
10-28 commissioner by certified mail.
10-29 (c) If the commissioner receives a copy of an affidavit
10-30 under Subsection (b)(2), the commissioner may file with the court,
10-31 within five days after the date the copy is received, a contest to
10-32 the affidavit.
10-33 (d) The court shall hold a hearing on the facts alleged in
10-34 the affidavit as soon as practicable and shall stay the enforcement
10-35 of the penalty on finding that the alleged facts are true. The
10-36 person who files an affidavit has the burden of proving that the
10-37 person is financially unable to pay the penalty and to give a
10-38 supersedeas bond.
10-39 Sec. 603.508. COLLECTION OF PENALTY. (a) If the person
10-40 does not pay the administrative penalty and the enforcement of the
10-41 penalty is not stayed, the penalty may be collected.
10-42 (b) The attorney general may sue to collect the penalty.
10-43 Sec. 603.509. DETERMINATION BY COURT. (a) If the court
10-44 sustains the determination that a violation occurred, the court may
10-45 uphold or reduce the amount of the administrative penalty and order
10-46 the person to pay the full or reduced amount of the penalty.
10-47 (b) If the court does not sustain the finding that a
10-48 violation occurred, the court shall order that a penalty is not
10-49 owed.
10-50 Sec. 603.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
10-51 the person paid the administrative penalty and if the amount of the
10-52 penalty is reduced or the penalty is not upheld by the court, the
10-53 court shall order, when the court's judgment becomes final, that
10-54 the appropriate amount plus accrued interest be remitted to the
10-55 person.
10-56 (b) The interest accrues at the rate charged on loans to
10-57 depository institutions by the New York Federal Reserve Bank.
10-58 (c) The interest shall be paid for the period beginning on
10-59 the date the penalty is paid and ending on the date the penalty is
10-60 remitted.
10-61 (d) If the person gave a supersedeas bond and the penalty is
10-62 not upheld by the court, the court shall order, when the court's
10-63 judgment becomes final, the release of the bond.
10-64 (e) If the person gave a supersedeas bond and the amount of
10-65 the penalty is reduced, the court shall order the release of the
10-66 bond after the person pays the reduced amount.
10-67 Sec. 603.511. ADMINISTRATIVE PROCEDURE. A proceeding under
10-68 this subchapter is a contested case under Chapter 2001, Government
10-69 Code.
11-1 SECTION 20. Subchapter H, Chapter 605, Occupations Code, is
11-2 amended by adding Section 605.3535 to read as follows:
11-3 Sec. 605.3535. EMERGENCY SUSPENSION. (a) The board or a
11-4 three-member committee of board members designated by the board
11-5 shall temporarily suspend the license of a license holder if the
11-6 board or committee determines from the evidence or information
11-7 presented to it that continued practice by the license holder would
11-8 constitute a continuing and imminent threat to the public welfare.
11-9 (b) A license may be suspended under this section without
11-10 notice or hearing on the complaint if:
11-11 (1) action is taken to initiate proceedings for a
11-12 hearing before the State Office of Administrative Hearings
11-13 simultaneously with the temporary suspension; and
11-14 (2) a hearing is held as soon as practicable under
11-15 this chapter and Chapter 2001, Government Code.
11-16 (c) The State Office of Administrative Hearings shall hold a
11-17 preliminary hearing not later than the 14th day after the date of
11-18 the temporary suspension to determine if there is probable cause to
11-19 believe that a continuing and imminent threat to the public welfare
11-20 still exists. A final hearing on the matter shall be held not
11-21 later than the 61st day after the date of the temporary suspension.
11-22 SECTION 21. Subchapter H, Chapter 605, Occupations Code, is
11-23 amended by adding Section 605.356 to read as follows:
11-24 Sec. 605.356. CRIMINAL PENALTY. (a) A person required to
11-25 hold a license under this chapter commits an offense if the person
11-26 knowingly practices, attempts to practice, or offers to practice
11-27 orthotics or prosthetics without holding a license issued under
11-28 this chapter.
11-29 (b) An offense under Subsection (a) is a Class B
11-30 misdemeanor.
11-31 SECTION 22. Chapter 605, Occupations Code, is amended by
11-32 adding Subchapter I to read as follows:
11-33 SUBCHAPTER I. ADMINISTRATIVE PENALTY
11-34 Sec. 605.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
11-35 board may impose an administrative penalty on a person licensed
11-36 under this chapter who violates this chapter or a rule or order
11-37 adopted under this chapter.
11-38 Sec. 605.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
11-39 amount of the administrative penalty may not be less than $50 or
11-40 more than $500 for each violation. Each day a violation continues
11-41 or occurs is a separate violation for the purpose of imposing a
11-42 penalty.
11-43 (b) The amount shall be based on:
11-44 (1) the seriousness of the violation, including the
11-45 nature, circumstances, extent, and gravity of the violation;
11-46 (2) the economic harm caused by the violation;
11-47 (3) the history of previous violations;
11-48 (4) the amount necessary to deter a future violation;
11-49 (5) efforts to correct the violation; and
11-50 (6) any other matter that justice may require.
11-51 Sec. 605.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
11-52 (a) If the executive director determines that a violation
11-53 occurred, the director may issue to the board a report stating:
11-54 (1) the facts on which the determination is based; and
11-55 (2) the director's recommendation on the imposition of
11-56 an administrative penalty, including a recommendation on the amount
11-57 of the penalty.
11-58 (b) Within 14 days after the date the report is issued, the
11-59 executive director shall give written notice of the report to the
11-60 person. The notice must:
11-61 (1) include a brief summary of the alleged violation;
11-62 (2) state the amount of the recommended administrative
11-63 penalty; and
11-64 (3) inform the person of the person's right to a
11-65 hearing on the occurrence of the violation, the amount of the
11-66 penalty, or both.
11-67 Sec. 605.404. PENALTY TO BE PAID OR HEARING REQUESTED.
11-68 (a) Within 10 days after the date the person receives the notice,
11-69 the person in writing may:
12-1 (1) accept the determination and recommended
12-2 administrative penalty of the executive director; or
12-3 (2) make a request for a hearing on the occurrence of
12-4 the violation, the amount of the penalty, or both.
12-5 (b) If the person accepts the determination and recommended
12-6 penalty of the executive director, the board by order shall approve
12-7 the determination and impose the recommended penalty.
12-8 Sec. 605.405. HEARING. (a) If the person requests a
12-9 hearing or fails to respond in a timely manner to the notice, the
12-10 executive director shall set a hearing and give written notice of
12-11 the hearing to the person.
12-12 (b) An administrative law judge of the State Office of
12-13 Administrative Hearings shall hold the hearing.
12-14 (c) The administrative law judge shall make findings of fact
12-15 and conclusions of law and promptly issue to the board a proposal
12-16 for a decision about the occurrence of the violation and the amount
12-17 of a proposed administrative penalty.
12-18 Sec. 605.406. DECISION BY BOARD. (a) Based on the findings
12-19 of fact, conclusions of law, and proposal for decision, the board
12-20 by order may determine that:
12-21 (1) a violation occurred and impose an administrative
12-22 penalty; or
12-23 (2) a violation did not occur.
12-24 (b) The notice of the board's order given to the person must
12-25 include a statement of the right of the person to judicial review
12-26 of the order.
12-27 Sec. 605.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
12-28 (a) Within 30 days after the date the board's order becomes final,
12-29 the person shall:
12-30 (1) pay the administrative penalty; or
12-31 (2) file a petition for judicial review contesting the
12-32 occurrence of the violation, the amount of the penalty, or both.
12-33 (b) Within the 30-day period prescribed by Subsection (a), a
12-34 person who files a petition for judicial review may:
12-35 (1) stay enforcement of the penalty by:
12-36 (A) paying the penalty to the court for
12-37 placement in an escrow account; or
12-38 (B) giving the court a supersedeas bond approved
12-39 by the court that:
12-40 (i) is for the amount of the penalty; and
12-41 (ii) is effective until all judicial
12-42 review of the board's order is final; or
12-43 (2) request the court to stay enforcement of the
12-44 penalty by:
12-45 (A) filing with the court a sworn affidavit of
12-46 the person stating that the person is financially unable to pay the
12-47 penalty and is financially unable to give the supersedeas bond; and
12-48 (B) giving a copy of the affidavit to the
12-49 executive director by certified mail.
12-50 (c) If the executive director receives a copy of an
12-51 affidavit under Subsection (b)(2), the director may file with the
12-52 court, within five days after the date the copy is received, a
12-53 contest to the affidavit.
12-54 (d) The court shall hold a hearing on the facts alleged in
12-55 the affidavit as soon as practicable and shall stay the enforcement
12-56 of the penalty on finding that the alleged facts are true. The
12-57 person who files an affidavit has the burden of proving that the
12-58 person is financially unable to pay the penalty and to give a
12-59 supersedeas bond.
12-60 Sec. 605.408. COLLECTION OF PENALTY. (a) If the person
12-61 does not pay the administrative penalty and the enforcement of the
12-62 penalty is not stayed, the penalty may be collected.
12-63 (b) The attorney general may sue to collect the penalty.
12-64 Sec. 605.409. DETERMINATION BY COURT. (a) If the court
12-65 sustains the determination that a violation occurred, the court may
12-66 uphold or reduce the amount of the administrative penalty and order
12-67 the person to pay the full or reduced amount of the penalty.
12-68 (b) If the court does not sustain the finding that a
12-69 violation occurred, the court shall order that a penalty is not
13-1 owed.
13-2 Sec. 605.410. REMITTANCE OF PENALTY AND INTEREST. (a) If
13-3 the person paid the administrative penalty and if the amount of the
13-4 penalty is reduced or the penalty is not upheld by the court, the
13-5 court shall order, when the court's judgment becomes final, that
13-6 the appropriate amount plus accrued interest be remitted to the
13-7 person.
13-8 (b) The interest accrues at the rate charged on loans to
13-9 depository institutions by the New York Federal Reserve Bank.
13-10 (c) The interest shall be paid for the period beginning on
13-11 the date the penalty is paid and ending on the date the penalty is
13-12 remitted.
13-13 (d) If the person gave a supersedeas bond and the penalty is
13-14 not upheld by the court, the court shall order, when the court's
13-15 judgment becomes final, the release of the bond.
13-16 (e) If the person gave a supersedeas bond and the amount of
13-17 the penalty is reduced, the court shall order the release of the
13-18 bond after the person pays the reduced amount.
13-19 Sec. 605.411. ADMINISTRATIVE PROCEDURE. A proceeding under
13-20 this subchapter is a contested case under Chapter 2001, Government
13-21 Code.
13-22 SECTION 23. Subchapter I, Chapter 701, Occupations Code, is
13-23 amended by adding Section 701.408 to read as follows:
13-24 Sec. 701.408. EMERGENCY SUSPENSION. (a) The dietitians
13-25 board or a three-member committee of board members designated by
13-26 the board shall temporarily suspend the license of a license holder
13-27 if the board or committee determines from the evidence or
13-28 information presented to it that continued practice by the license
13-29 holder would constitute a continuing and imminent threat to the
13-30 public welfare.
13-31 (b) A license may be suspended under this section without
13-32 notice or hearing on the complaint if:
13-33 (1) action is taken to initiate proceedings for a
13-34 hearing before the State Office of Administrative Hearings
13-35 simultaneously with the temporary suspension; and
13-36 (2) a hearing is held as soon as practicable under
13-37 this chapter and Chapter 2001, Government Code.
13-38 (c) The State Office of Administrative Hearings shall hold a
13-39 preliminary hearing not later than the 14th day after the date of
13-40 the temporary suspension to determine if there is probable cause to
13-41 believe that a continuing and imminent threat to the public welfare
13-42 still exists. A final hearing on the matter shall be held not
13-43 later than the 61st day after the date of the temporary suspension.
13-44 SECTION 24. Chapter 701, Occupations Code, is amended by
13-45 adding Subchapter K to read as follows:
13-46 SUBCHAPTER K. ADMINISTRATIVE PENALTY
13-47 Sec. 701.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
13-48 dietitians board may impose an administrative penalty on a person
13-49 licensed under this chapter who violates this chapter or a rule or
13-50 order adopted under this chapter.
13-51 Sec. 701.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
13-52 amount of the administrative penalty may not be less than $50 or
13-53 more than $500 for each violation. Each day a violation continues
13-54 or occurs is a separate violation for the purpose of imposing a
13-55 penalty.
13-56 (b) The amount shall be based on:
13-57 (1) the seriousness of the violation, including the
13-58 nature, circumstances, extent, and gravity of the violation;
13-59 (2) the economic harm caused by the violation;
13-60 (3) the history of previous violations;
13-61 (4) the amount necessary to deter a future violation;
13-62 (5) efforts to correct the violation; and
13-63 (6) any other matter that justice may require.
13-64 Sec. 701.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
13-65 (a) If the commissioner determines that a violation occurred, the
13-66 commissioner may issue to the dietitians board a report stating:
13-67 (1) the facts on which the determination is based; and
13-68 (2) the commissioner's recommendation on the
13-69 imposition of an administrative penalty, including a recommendation
14-1 on the amount of the penalty.
14-2 (b) Within 14 days after the date the report is issued, the
14-3 commissioner shall give written notice of the report to the person.
14-4 The notice must:
14-5 (1) include a brief summary of the alleged violation;
14-6 (2) state the amount of the recommended administrative
14-7 penalty; and
14-8 (3) inform the person of the person's right to a
14-9 hearing on the occurrence of the violation, the amount of the
14-10 penalty, or both.
14-11 Sec. 701.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
14-12 Within 10 days after the date the person receives the notice, the
14-13 person in writing may:
14-14 (1) accept the determination and recommended
14-15 administrative penalty of the commissioner; or
14-16 (2) make a request for a hearing on the occurrence of
14-17 the violation, the amount of the penalty, or both.
14-18 (b) If the person accepts the determination and recommended
14-19 penalty of the commissioner, the dietitians board by order shall
14-20 approve the determination and impose the recommended penalty.
14-21 Sec. 701.505. HEARING. (a) If the person requests a
14-22 hearing or fails to respond in a timely manner to the notice, the
14-23 commissioner shall set a hearing and give written notice of the
14-24 hearing to the person.
14-25 (b) An administrative law judge of the State Office of
14-26 Administrative Hearings shall hold the hearing.
14-27 (c) The administrative law judge shall make findings of fact
14-28 and conclusions of law and promptly issue to the dietitians board a
14-29 proposal for a decision about the occurrence of the violation and
14-30 the amount of a proposed administrative penalty.
14-31 Sec. 701.506. DECISION BY DIETITIANS BOARD. (a) Based on
14-32 the findings of fact, conclusions of law, and proposal for
14-33 decision, the dietitians board by order may determine that:
14-34 (1) a violation occurred and impose an administrative
14-35 penalty; or
14-36 (2) a violation did not occur.
14-37 (b) The notice of the dietitians board's order given to the
14-38 person must include a statement of the right of the person to
14-39 judicial review of the order.
14-40 Sec. 701.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
14-41 (a) Within 30 days after the date the dietitians board's order
14-42 becomes final, the person shall:
14-43 (1) pay the administrative penalty; or
14-44 (2) file a petition for judicial review contesting the
14-45 occurrence of the violation, the amount of the penalty, or both.
14-46 (b) Within the 30-day period prescribed by Subsection (a), a
14-47 person who files a petition for judicial review may:
14-48 (1) stay enforcement of the penalty by:
14-49 (A) paying the penalty to the court for
14-50 placement in an escrow account; or
14-51 (B) giving the court a supersedeas bond approved
14-52 by the court that:
14-53 (i) is for the amount of the penalty; and
14-54 (ii) is effective until all judicial
14-55 review of the dietitians board's order is final; or
14-56 (2) request the court to stay enforcement of the
14-57 penalty by:
14-58 (A) filing with the court a sworn affidavit of
14-59 the person stating that the person is financially unable to pay the
14-60 penalty and is financially unable to give the supersedeas bond; and
14-61 (B) giving a copy of the affidavit to the
14-62 commissioner by certified mail.
14-63 (c) If the commissioner receives a copy of an affidavit
14-64 under Subsection (b)(2), the commissioner may file with the court,
14-65 within five days after the date the copy is received, a contest to
14-66 the affidavit.
14-67 (d) The court shall hold a hearing on the facts alleged in
14-68 the affidavit as soon as practicable and shall stay the enforcement
14-69 of the penalty on finding that the alleged facts are true. The
15-1 person who files an affidavit has the burden of proving that the
15-2 person is financially unable to pay the penalty and to give a
15-3 supersedeas bond.
15-4 Sec. 701.508. COLLECTION OF PENALTY. (a) If the person
15-5 does not pay the administrative penalty and the enforcement of the
15-6 penalty is not stayed, the penalty may be collected.
15-7 (b) The attorney general may sue to collect the penalty.
15-8 Sec. 701.509. DETERMINATION BY COURT. (a) If the court
15-9 sustains the determination that a violation occurred, the court may
15-10 uphold or reduce the amount of the administrative penalty and order
15-11 the person to pay the full or reduced amount of the penalty.
15-12 (b) If the court does not sustain the finding that a
15-13 violation occurred, the court shall order that a penalty is not
15-14 owed.
15-15 Sec. 701.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
15-16 the person paid the administrative penalty and if the amount of the
15-17 penalty is reduced or the penalty is not upheld by the court, the
15-18 court shall order, when the court's judgment becomes final, that
15-19 the appropriate amount plus accrued interest be remitted to the
15-20 person.
15-21 (b) The interest accrues at the rate charged on loans to
15-22 depository institutions by the New York Federal Reserve Bank.
15-23 (c) The interest shall be paid for the period beginning on
15-24 the date the penalty is paid and ending on the date the penalty is
15-25 remitted.
15-26 (d) If the person gave a supersedeas bond and the penalty is
15-27 not upheld by the court, the court shall order, when the court's
15-28 judgment becomes final, the release of the bond.
15-29 (e) If the person gave a supersedeas bond and the amount of
15-30 the penalty is reduced, the court shall order the release of the
15-31 bond after the person pays the reduced amount.
15-32 Sec. 701.511. ADMINISTRATIVE PROCEDURE. A proceeding under
15-33 this subchapter is a contested case under Chapter 2001, Government
15-34 Code.
15-35 SECTION 25. Chapter 462, Acts of the 68th Legislature,
15-36 Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
15-37 Statutes), is amended by adding Sections 13D and 13E to read as
15-38 follows:
15-39 Sec. 13D. EMERGENCY SUSPENSION. (a) The council or a
15-40 three-member committee of council members designated by the council
15-41 shall temporarily suspend the registration of a registration holder
15-42 if the council or committee determines from the evidence or
15-43 information presented to it that continued practice by the
15-44 registration holder would constitute a continuing and imminent
15-45 threat to the public welfare.
15-46 (b) A registration may be suspended under this section
15-47 without notice or hearing on the complaint if:
15-48 (1) action is taken to initiate proceedings for a
15-49 hearing before the State Office of Administrative Hearings
15-50 simultaneously with the temporary suspension; and
15-51 (2) a hearing is held as soon as practicable under
15-52 this chapter and Chapter 2001, Government Code.
15-53 (c) The State Office of Administrative Hearings shall hold a
15-54 preliminary hearing not later than the 14th day after the date of
15-55 the temporary suspension to determine if there is probable cause to
15-56 believe that a continuing and imminent threat to the public welfare
15-57 still exists. A final hearing on the matter shall be held not
15-58 later than the 61st day after the date of the temporary suspension.
15-59 Sec. 13E. ADMINISTRATIVE PENALTY. (a) The council may
15-60 impose an administrative penalty on a person registered under this
15-61 Act who violates this Act or a rule or order adopted under this
15-62 Act.
15-63 (b) The amount of the administrative penalty may not be less
15-64 than $50 or more than $500 for each violation. Each day a
15-65 violation continues or occurs is a separate violation for the
15-66 purpose of imposing a penalty. The amount shall be based on:
15-67 (1) the seriousness of the violation, including the
15-68 nature, circumstances, extent, and gravity of the violation;
15-69 (2) the economic harm caused by the violation;
16-1 (3) the history of previous violations;
16-2 (4) the amount necessary to deter a future violation;
16-3 (5) efforts to correct the violation; and
16-4 (6) any other matter that justice may require.
16-5 (c) If the executive director determines that a violation
16-6 occurred, the director may issue to the council a report stating:
16-7 (1) the facts on which the determination is based; and
16-8 (2) the director's recommendation on the imposition of
16-9 an administrative penalty, including a recommendation on the amount
16-10 of the penalty.
16-11 (d) Within 14 days after the date the report is issued, the
16-12 executive director shall give written notice of the report to the
16-13 person. The notice must:
16-14 (1) include a brief summary of the alleged violation;
16-15 (2) state the amount of the recommended administrative
16-16 penalty; and
16-17 (3) inform the person of the person's right to a
16-18 hearing on the occurrence of the violation, the amount of the
16-19 penalty, or both.
16-20 (e) Within 10 days after the date the person receives the
16-21 notice, the person in writing may:
16-22 (1) accept the determination and recommended
16-23 administrative penalty of the executive director; or
16-24 (2) make a request for a hearing on the occurrence of
16-25 the violation, the amount of the penalty, or both.
16-26 (f) If the person accepts the determination and recommended
16-27 penalty of the executive director, the council by order shall
16-28 approve the determination and impose the recommended penalty.
16-29 (g) If the person requests a hearing or fails to respond in
16-30 a timely manner to the notice, the executive director shall set a
16-31 hearing and give written notice of the hearing to the person.
16-32 (h) An administrative law judge of the State Office of
16-33 Administrative Hearings shall hold the hearing.
16-34 (i) The administrative law judge shall make findings of fact
16-35 and conclusions of law and promptly issue to the council a proposal
16-36 for a decision about the occurrence of the violation and the amount
16-37 of a proposed administrative penalty.
16-38 (j) Based on the findings of fact, conclusions of law, and
16-39 proposal for decision, the council by order may determine that:
16-40 (1) a violation occurred and impose an administrative
16-41 penalty; or
16-42 (2) a violation did not occur.
16-43 (k) The notice of the council's order given to the person
16-44 must include a statement of the right of the person to judicial
16-45 review of the order.
16-46 (l) Within 30 days after the date the council's order
16-47 becomes final, the person shall:
16-48 (1) pay the administrative penalty; or
16-49 (2) file a petition for judicial review contesting the
16-50 occurrence of the violation, the amount of the penalty, or both.
16-51 (m) Within the 30-day period prescribed by Subsection (l), a
16-52 person who files a petition for judicial review may:
16-53 (1) stay enforcement of the penalty by:
16-54 (A) paying the penalty to the court for
16-55 placement in an escrow account; or
16-56 (B) giving the court a supersedeas bond approved
16-57 by the court that:
16-58 (i) is for the amount of the penalty; and
16-59 (ii) is effective until all judicial
16-60 review of the council's order is final; or
16-61 (2) request the court to stay enforcement of the
16-62 penalty by:
16-63 (A) filing with the court a sworn affidavit of
16-64 the person stating that the person is financially unable to pay the
16-65 penalty and is financially unable to give the supersedeas bond; and
16-66 (B) giving a copy of the affidavit to the
16-67 executive director by certified mail.
16-68 (n) If the executive director receives a copy of an
16-69 affidavit under Subsection (m)(2), the director may file with the
17-1 court, within five days after the date the copy is received, a
17-2 contest to the affidavit.
17-3 (o) The court shall hold a hearing on the facts alleged in
17-4 the affidavit as soon as practicable and shall stay the enforcement
17-5 of the penalty on finding that the alleged facts are true. The
17-6 person who files an affidavit has the burden of proving that the
17-7 person is financially unable to pay the penalty and to give a
17-8 supersedeas bond.
17-9 (p) If the person does not pay the administrative penalty
17-10 and the enforcement of the penalty is not stayed, the penalty may
17-11 be collected. The attorney general may sue to collect the penalty.
17-12 (q) If the court sustains the determination that a violation
17-13 occurred, the court may uphold or reduce the amount of the
17-14 administrative penalty and order the person to pay the full or
17-15 reduced amount of the penalty. If the court does not sustain the
17-16 finding that a violation occurred, the court shall order that a
17-17 penalty is not owed.
17-18 (r) If the person paid the administrative penalty and if the
17-19 amount of the penalty is reduced or the penalty is not upheld by
17-20 the court, the court shall order, when the court's judgment becomes
17-21 final, that the appropriate amount plus accrued interest be
17-22 remitted to the person. The interest accrues at the rate charged
17-23 on loans to depository institutions by the New York Federal Reserve
17-24 Bank. The interest shall be paid for the period beginning on the
17-25 date the penalty is paid and ending on the date the penalty is
17-26 remitted.
17-27 (s) If the person gave a supersedeas bond and the penalty is
17-28 not upheld by the court, the court shall order, when the court's
17-29 judgment becomes final, the release of the bond. If the person
17-30 gave a supersedeas bond and the amount of the penalty is reduced,
17-31 the court shall order the release of the bond after the person pays
17-32 the reduced amount.
17-33 (t) A proceeding under this section is a contested case
17-34 under Chapter 2001, Government Code.
17-35 SECTION 26. (a) This Act takes effect September 1, 2001.
17-36 (b) The change in law made by this Act to Section 602.302,
17-37 Occupations Code, applies only to an offense committed on or after
17-38 the effective date of this Act. For purposes of this subsection,
17-39 an offense is committed before the effective date of this Act if
17-40 any element of the offense occurs before the effective date. An
17-41 offense committed before the effective date of this Act is governed
17-42 by the law in effect on the date the offense was committed, and the
17-43 former law is continued in effect for that purpose.
17-44 (c) The change in law made by this Act relating to
17-45 imposition of an administrative penalty or civil penalty applies
17-46 only to an act or omission that occurs on or after the effective
17-47 date of this Act. An act or omission that occurs before the
17-48 effective date of this Act is governed by the law in effect on the
17-49 date the act or omission occurred, and the former law is continued
17-50 in effect for that purpose.
17-51 * * * * *